Updates on the ICC proceedings concerning the Libyan challenges to the admissibility of the case against Saif Gaddafi and Adbullah Al-Senussi

This is an overdue post concerning recent developments in the Libyan situation before the ICC and more specifically the admissibility challenges in the cases against Saif Gaddafi and Abdullah Al-Senussi. On 31 May 2013 Pre-Trial Chamber I (or Chamber) of the International Criminal Court (ICC) rejected Libya’s challenge under article 19 of the Rome Statute to the admissibility of the case against Saif Gaddafi. A summary of the decision is available here, whereas the full text of the decision is available here. The relevant ICC’s press release is available here. On 11 June 2013 the Pre-Trial Chamber I issued a decision on ‘Decision on the Prosecutor’s request for leave to present additional observations on Libya’s challenge to the admissibility of the case against Abdullah Al-Senussi’ (see decision here) and on 14 June 2013 it issued a decision on ‘Decision on Libya’s postponement of the execution of the request for arrest and surrender of Abdullah Al-Senussi pursuant to article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council’ (see decision here).

In accordance with articles 17, 19, 21, 90 and 95 of the Statute and rules 58 and 59 of the Rules and guided by the jurisprudence of the Appeals Chamber, Pre-Trial Chamber I concluded that, in considering an admissibility challenge, two questions must be addressed:

(i) whether, at the time of the proceedings in respect of an admissibility challenge, there is an ongoing investigation or prosecution of the case at the national level; and

(ii) whether the State is unwilling or unable genuinely to carry out such investigation or prosecution.

The Pre-Trial Chamber decided that taken as a whole, the evidence presented by Libya did not allow it to discern the actual contours of the national case against Mr Gaddafi such that Libya could be said to have substantiated, by means of evidence of a sufficient degree of specificity and probative value, the submission that the domestic investigation covers the same case that is before the Court. It is interesting to note here that the Prosecutor suggested that Libya be provided more time to submit additional evidence.

With respect to the question of “inability”, Pre-Trial Chamber I found that the ability of a State genuinely to carry out an investigation or prosecution must be assessed in light of the relevant national system and procedures, meaning the substantive and procedural law applicable in Libya. While noting Libya’s efforts and progress, Pre-Trial Chamber I found that multiple challenges remained and that Libya continued to face substantial difficulties in exercising its judicial powers fully across the entire territory or in respects relevant to the case, being thus “unavailable” within the terms of article 17(3) of the Statute. The Chamber found that this unavailability impacted on Libya’s ability to carry out the proceedings against Mr Gaddafi in three material ways:

First, Libya had not been able to secure the transfer of Mr Gaddafi into State custody from his place of detention in Zintan. The Chamber did not doubt that the central Government was engaging in every effort to obtain Mr Gaddafi’s transfer, but found that no concrete progress to this effect had been shown since the date of his apprehension on 19 November 2011 and was not persuaded that the problem would be resolved in the near future.

Second, the Chamber was concerned about the lack of capacity to obtain the necessary testimony and the inability of judicial and governmental authorities to exercise full control over certain detention facilities and to provide adequate witness protection.

Third, the Chamber found that significant practical impediments exist to securing legal representation for Mr Gaddafi in view of the security situation in Libya and the risk faced by lawyers who act for associates of the former regime, constituting an impediment to the progress of proceedings against Mr Gaddafi in accordance with Libyan law.

As Libya was found to be unable genuinely to carry out the investigation or prosecution of Mr Gaddafi, the Chamber did not address the question of Libya’s willingness genuinely to carry out the investigation or prosecution. While noting that Libya could bring an admissibility challenge subsequently, provided the requirements of article 19(4), third sentence, of the Statute were met, Pre-Trial Chamber I found that the case against Mr Gaddafi was admissible and reminded Libya of its obligation to surrender the suspect to the Court.

The decision of 11 June is about the Prosecutor’s request to submit additional observations in the case against Abdullah Al-Senussi in relation to: (i) the extent to which the interpretation of “case” and “conduct” advanced in her response is compatible with the Chamber’s decision on the admissibility of the case against Saif Gaddafi; and (ii) Libya’s ability genuinely to carry out the investigation or prosecution of the case against Mr Al-Senussi in light of the factors considered by the Chamber in that decision. Pre-Trial Chamber I considered that it would be beneficial, for the purpose of the resolution of the Admissibility Challenge, to receive the Prosecutor’s observations and authorized it to submit its observations no later than 14 June 2013.

The decision of 14 June concerns Libya’s postponement of the execution of the request for arrest and surrender of Abdullah Al-Senussi pursuant to article 95 of the Rome Statute and related Defence request to refer Libya to the UN Security Council. On 19 March 2013, the Defence of Mr Al-Senussi filed an application to refer Libya and Mauritania to the UN Security Council for their failure to comply with their obligations vis-à-vis the Court. The Admissibility Challenge was filed by Libya on 2 April 2013, almost seven months after Mr Al-Senussi’s transfer to Libya from Mauritania. Given that the request by the ICC to Libya for the arrest and surrender of Mr Al-Senussi was made on 4 July 2011 and that Mr. Al-Senussi was transferred from Mauritania to Libya on 5 September 2012 it is difficult to see how the filing of an admissibility challenge on 2 April 2013 is not tardy? How can a seven months delay be compatible with the requirement that a State shall seize the Chamber of an admissibility challenge as soon as there are grounds on the basis of which the case would be inadmissible before the Court? The Appeals Chamber decision in The Prosecutor v. William Samoei Ruto and Joshua Arap Sang of 30 August 2011, cited in the decision of Pre-Trial Chamber I, is wrong in holding that a State “cannot expect to be allowed” to amend or complement a challenge made prematurely. What does this mean? That a State is allowed to submit late an admissibility challenge, but it cannot expect to amend or complement that challenge once made?

In my view, the correct position is that a State should seize the Chamber of an admissibility challenge as soon as there are grounds on the basis of which the case would be inadmissible before the Court. Once that step is taken, the Court should allow the State to amend or complement the admissibility challenge within a reasonable time. Such proceedings require striking a balance between the rights of the accused and the lawful interests of the State, as secured within the legal framework of the ICC.

The Defence’s arguments fell within three main categories related to: (i) the timing of the Admissibility Challenge; (ii) the violation on the part of Libya of its international obligations with respect to the transfer of Mr Al-Senussi to the Court; and (iii) the need to ensure Mr Al-Senussi’s presence at the seat of the Court in order to advance the admissibility proceedings and give effect to his rights under the Statute and the Rules of Procedure and Evidence (the “Rules”).

In clarifying the application of Article 95 of the ICC Statute the Pre-Trial Chamber I concluded that the postponement of the execution of a surrender request while an admissibility challenge is pending falls within the prerogatives of the requested State and does not require a Chamber’s prior authorization. However, it falls within the Chamber’s powers and duties to verify that the pre-requisites for the exercise by a State of this prerogative are met, namely that a proper admissibility challenge pursuant to article 19 of the Statute is under consideration by the Court.

The Chamber emphasized that the postponement by Libya is only temporary and that, in accordance with article 19(9) of the Statute, the arrest warrant issued by the Chamber against Mr Al-Senussi remains valid. Accordingly, during the postponement, Libya must refrain from taking any action which could frustrate or hinder a prompt execution of the Surrender Request should the case be found admissible, and must take all the positive measures that are necessary to this effect. In the same vein, as emphasized above, the Chamber recalled that the postponement of the Surrender Request in no way affects Libya’s continuing obligation to cooperate with the Court and to provide the assistance required by the Court with a view to ensuring, in particular, Mr Al-Senussi’s exercise of his statutory rights, including to receive a visit of the appointed counsel, and a timely and effective disposal of the Admissibility Challenge.

The Defence had also submitted that Libya should be referred to the Security Council for: (i) its involvement in Mr Al-Senussi’s extradition to Libya by Mauritania in September 2012; (ii) its non-compliance with the request for surrender of Mr Al-Senussi between September 2012 and the filing of the Admissibility Challenge (i.e. 2 April 2013) in which Libya invoked its right under article 95 of the Statute; and (iii) its failure to date to arrange a privileged visit to Mr Al-Senussi by his Defence, as requested by the Chamber. In relation to the privileged visit to Mr Al-Senussi, the Chamber noted the Memorandum of Understanding between the Court and Libya which indicated, inter alia, that “the Libyan Government invite[s] the defense team for Mr. Al-Senussi to visit Libya forthwith at any time convenient for them”. The Chamber found that should the circumstances ultimately evolve into indicating that Libya will fail to cooperate with the Court in the arrangement of the privileged legal visit to Mr Al-Senussi, it would determine what measures would be necessary to ensure compliance on the part of Libya with the Chamber’s order to that effect.

The Pre-Trial Chamber I decided that Libya, pursuant to article 95 of the Statute, may postpone the execution of the Surrender Request pending determination of the Admissibility Challenge; and rejected the request of the Defence of Mr Al-Senussi to make a finding of non-cooperation by Libya and to refer the matter to the Security Council.

I am quite pleased with the first decision, since the Libyan government is still struggling to establish control over the country and a trial according to ‘Zintan law’ would not serve the interests of justice. However, the recent decision of Pre-Trial Chamber I with regard to Al-Senussi seems to be on precarious ground. For a criticism of this decision see also a post by Kevin Jon Heller here. Libya should surrender both Saif Gaddafi and Abdullah Al-Senussi to the ICC and cooperate fully with the Court so as to ensure that both these individuals are held to account.

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